Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 23 August 2024, Mr Eduardo Dias Madureira (Mr Madureira or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with ISS Security Pty Limited (ISS or the Respondent).

• [2] ISS objects to the application on the ground that Mr Madureira was not dismissed. Before considering the merits of the application, the Commission must be satisfied that Mr Madureira has been dismissed. ISS asserts that no dismissal at the initiative of the employer has taken place, and that Mr Madureira resigned of his own free will.

• [3] A threshold issue to be determined is whether the Mr Madureira has been dismissed from their employment.

• [4] Central to the consideration in this case is the operation of section 386(1) of the Act.

Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2 of the Act, which concerns Unfair Dismissals. The word 'dismissed' is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act. Section 386(1) of the Act reads:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

• [5] This definition contains two elements. The first concerns termination on the employer's initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.

• [6] The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]

• [7] In this matter, Mr Madureira acknowledges that he resigned from his employment and did not do so in the heat of the moment, rather, Mr Madureira is of the position that ISS engaged in a course of conduct that left him with no alternative but to resign from his employment. In my assessment of the circumstances, the relevant test is therefore the one under section 386(1)(b) of the Act.

• [8] From the outset, it will be helpful to note that there are two witnesses with similar names; Ms Kate Johnston (Service Duty Manager at ISS) and Ms Robyn Johnstone (the partner of Mr Madureira and also an ISS employee). Any mention of Ms Johnstone refers to Ms Kate Johnstone. Ms Robyn Johnstone will be referred to as Robyn.

• [9] Mr Madureira commenced employment with ISS on 23 January 2023 and was employed as an Aviation Protection Officer on a part time basis.

• [10] On 4 February 2024, Mr Madureira attended work in accordance with his rostered shift. During his shift, ISS management became concerned about the behaviour of Mr Madureira and his fitness for work. Primarily, ISS was concerned over Mr Madureira's ability to safely transport himself home from work. Mr Madureira confirmed that he was unwell and needed to leave his rostered shift early, on 4 February 2024. ISS notes that the duty manager, Ms Johnston, was concerned about Mr Madureira' ability to safely commute home to his residence and attempted to remove Mr Madureira's car keys from his vehicle.

• [11] On 4 February 2024, Mr Madureira received an email titled confidential from ISS's People and Culture Manager, Mr Naimul Chowdhury, stating the following:

This letter is informing you of suspension from duty on ISS Security Pty Limited contract.

You are advised hat in accordance with this advice:

1. You WILL be paid in accordance with your roster during the period of suspension.
2. You are NOT to report to or attend your normal place of duty or Company/customer premises while under suspension.
3. You are NOT at this time accused by the Company of any offence or impropriety and your suspension is to allow the matter above to be fully and objectively investigate without prejudice to yourself or other parties.
4. You MUST attend any meetings or interviews required by the Company during your suspension."

• [12] On 4 February 2024, Mr Madureira received a further email from Mr Chowdhury which states the following:

"You are under investigation for the following allegations:

• Attending work under suspected influence of a testable drug or alcohol and demonstrating intoxicated behaviour.
• Demonstrating aggressive behaviour towards coworkers and management.
• Refusing to follow reasonable directions from the management.
• Breaching ISS values and policies."

• [13] On 5 February 2024, Mr Madureira was directed to complete a drug and alcohol test. The results indicated Mr Madureira was using medication that had not be declared to ISS. Subsequently, ISS directed Mr Madureira to attend a fitness for work medical appointment on 14 February 2024. Following this fitness for work medical, Mr Madureira returned to work on 19 February 2024. Consistent with the fitness for work medical restrictions, Mr Madureira was rostered to complete only day or afternoon shifts (finishing by 10:00pm), in order to manage his fatigue. Mr Madureira was also restricted from completing additional shifts for a period of at least two months following the medical on 14 February 2024.

• [14] The parties are in dispute regarding the nature of an alleged discussion held on 19 February 2024. ISS submits that the meeting was about Mr Madureira returning a non-negative drug and alcohol test for a prescription medication which had not been declared and how this would be managed by the parties into the future. Mr Madureira submits that he attempted to raise other workplace issues, such as his issues with Mr Green and Ms Johnstone, however, ISS were not willing to listen to these concerns.

• [15] On 22 July 2024, Mr Madureira resigned from his employment with ISS, his written resignation states:

"Please accept this as notice of my resignation from the position of Aviation Protection Officer at ISS Facility Services Australia Ltd.

Since my notice period is 2 weeks, I believe my last day will be 04/08/2024."

• [16] The parties disagree over whether the resignation was due to conduct of ISS leaving no alternative but resignation.

• [17] When resigning from his employment with ISS, Mr Madureira states he verbally outlined to Mr Omar Aldoski (Assistant Operations Manager at ISS) and Mr Chowdury the reasons for resignation and made verbal complaints regarding issues he faced during his employment.

• [18] Mr Madureira outlines that there are three key events that lead to the resignation of his employment with ISS:

• 19 November 2023 - Mr Madureira submits he was harassed and coerced into performing duties outside his position by his supervisor Mr Green.

• 20 January 2024 - Mr Madureira submits he was harassed by Mr Green in relation to his Italian heritage.

• 4 February 2024 - Mr Madureira submits that the conduct of Ms Johnstone was unreasonable and left him feeling shocked and disturbed.

• [19] Mr Madureira submits that the incidents with Mr Green in late 2023 and early 2024 exacerbated prior mental health issues.

• [20] Mr Madureira outlines his concerns regarding the meeting held between himself and ISS management on 19 February 2024. Mr Madureira states that he tried to raise his issues with Mr Green and Ms Johnstone stemming from the incidents listed above. Mr Madureira submits that ISS were dismissive of his complaints and failed to take any action to investigate them. Mr Madureira states that he raised concerns about the proposed roster, reduced hours, and no overtime being offered as a part of the medical restrictions. Mr Madureira submits that ISS failed to genuinely listen to any of his concerns or consider other options (i.e. such as working in other sections of the airport away from Mr Green).

• [21] Mr Madureira confirms that, on 10 April 2024, he returned from holiday and had no feedback from ISS in response to his concerns raised at the meeting of 19 February 2024. Mr Madureira submits that, due to ISS failing to provide him with feedback or closure, he took an additional period of personal leave from 15 April until 15 May 2024. Mr Madureira states that, upon his subsequent return to work, his roster arrangements were still not satisfactory, and he was denied the ability to pick up overtime shifts by ISS.

• [22] Mr Madureira notes that, on 20 June 2024, he again took a period of personal leave from his employment. Mr Madureira states that this was due to the conduct of ISS in failing to provide him with an increase in hours or alternate position at Perth Airport.

• [23] Mr Madureira states that, on 2 July 2024, he had further discussions regarding his roster and the position he was being assigned to work at Perth Airport by ISS. Mr Madureira states that Mr Hamid Khan, ISS Business Manager (responsible for rostering related matters), advised him that, due to the investigation and medical restrictions on hours that could be allocated, there would be difficulty accommodating the roster changes he sought. Mr Madureira states that Mr Khan committed to providing him a response the following day.

• [24] Mr Madureira states that, on 12 July 2024, he emailed Mr Tony Ibe (People and Culture Coordinator) seeking to move from part-time employment to full-time employment. Mr Madureira submits that, despite receiving information from Mr Ibe, he did not receive a satisfactory response to his request for full-time employment and, on 20 July 2024, he resigned from his employment. Mr Madureira submits that this was due to numerous factors including ISS failing to investigate the complaints he raised about Mr Green and Ms Kate Johnstone and failing to provide him with full-time employment. Mr Madureira disputes that Mr Aldoski ever called him in early June to confirm that the investigation in relation to the matter of 4 February 2024 ever occurred. It is the position of Mr Madureira that the failure of ISS to close this matter out promptly or professionally further contributed to his resignation from ISS.

• [25] Ms Robyn Johnstone, the partner of Mr Madureira and a fellow employee of ISS, gave evidence on behalf of Mr Madureira. Robyn provided further historical evidence in relation to issues she had with Mr Green. These incidents went back as early as 2014.

• [26] Robyn confirms that, on 4 February 2024, she heard Ms Johnstone speak to Mr Madureira when he was in his car leaving work. Robyn confirms that she attended a meeting with Mr Madureira on 19 February 2024 and that she was concerned about the number of ISS management staff present.

• [27] Mr Geoffrey Durbin, a former employee of ISS, provided witness evidence in support of Mr Madureira in relation to his interactions and his concerns about the conduct of Mr Green.

• [28] ISS submits that Mr Madureira resigned from his employment of his own accord and there was no course of conduct that ISS engaged in which forced Mr Madureira to resign from his employment.

• [29] ISS submits that, at the time of Mr Madureira resigning from his employment, Mr Madureira was not subject to any disciplinary proceedings, nor had Mr Madureira raised any concerns about workplace bullying or harassment that were unresolved.

• [30] It is the position of ISS that the incident on 4 February 2024 had been resolved and there were no outstanding actions from this incident.

• [31] ISS submits that the process followed in investigating concerns about the behaviour of Mr Madureira during his shift on 4 February 2024 were reasonable in the circumstances and highlighted that no disciplinary action had been taken against Mr Madureira following this incident. Rather, ISS sought to confirm his fitness for work and the recommended restrictions were in place to ensure Mr Madureira was being supported.

• [32] ISS confirms that Mr Madureira had been seeking fulltime employment and made a request for fulltime hours on 12 July 2024. ISS submits that there were no fulltime positions available at that time and directed Mr Madureira to speak to the rostering team to discuss his request for additional hours. It was the submission of ISS that Mr Madureira did not speak to the rostering team prior to his resignation.

• [33] Mr Chowdhury confirms that Mr Madureira was not subject to any disciplinary action at the time of his resignation nor was he aware of any unresolved complaints regarding allegations of bullying and harassment from Mr Madureira. Mr Chowdhury confirms that he was aware Mr Madureira was seeking fulltime employment at the time of his resignation, however, there were no fulltime positions available.

• [34] Mr Aldoski confirms that he was notified of the event that occurred on 4 February 2024 and then, on 5 February 2024, he advised Mr Madureira that he would be required to obtain a drug and alcohol test on 6 February 2024. Mr Aldoski confirms that the test completed by Mr Madureira on 6 February 2024 returned a non-negative result for a prescription medication that Mr Madureira had not previously declared with ISS.

• [35] Mr Aldoski states that he reviewed the conduct of Ms Johnston and Mr Madureira on 4 February 2024 and determined no further investigation was warranted, as Ms Johnston was reasonable in her attempts to prevent Mr Madureira from driving due to the concerns over fitness for work and travel. Mr Aldoski confirms that Mr Madureira was on leave between 19 February and 16 May 2024 and, as a result, he did not meet with Mr Madureira to provide this feedback until early June 2024_._ Mr Aldoski states that, once this conversation had taken place, he assumed the matter was resolved with Mr Madureira.

• [36] As I have determined that section 386(1)(b) of the Act is the relevant test for this matter, I now turn to consider the conduct of ISS and the decision of Mr Madureira in the context of the employment coming to an end. The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. In this case particularly, whether this line was crossed is not immediately transparent. The onus is on the employee to prove that the resignation was forced.

• [37] From my assessment of the evidence, Mr Madureira was upset about ISS not offering him a full-time position and this was a primary factor in the decision of Mr Madureira to resign from his employment. However, I do not consider that ISS not having a full-time position available is conduct that could be constructed as leaving Mr Madureira with no alternative but to resign from his employment. Noting the other reasons put forth by Mr Madureira as contributing to his dismissal, it bears questioning why one would seek fulltime employment in a workplace they were seemingly so unhappy with.

• [38] I accept that Mr Madureira was aggrieved and unhappy with the nature of his workplace relationship with Mr Green. However, having considered the evidence before the Commission, I am not satisfied that Mr Madureira ever sought to make a workplace complaint against Mr Green prior to his resignation.

• [39] Mr Madureira makes several assertions that he attempted to raise the issues he had with Mr Green to ISS management and was ignored, also noting apprehension over raising issues due to fear of reprisal. However, the only specific incident Mr Madureira references that could be considered him raising the issue is in his phone call with Mr Aldoski the day after the carpark incident. Mr Madureira submits that he raised concerns over Mr Green and Ms Johnstone's conduct and Mr Aldoski noted he was unaware of the full incident details and was only concerned with the DAMP test refusal. Mr Aldoski's incident report following the phone call and further investigation does note Mr Madureira raising concern over Ms Johnstone's conduct but there is no reference to similar concerns being raised regarding Mr Green. Mr Madureira also notes that he had been seeking the General Manager's contact information, with which he intended to raise his issues. ISS notes that he was provided with contact details for several management staff and never made any complaint to them. I note that, whilst the witnesses Mr Madureira obtained confirmed they had similar issues with Mr Green, no party has been able to provide evidence supporting the assertion that a complaint against Mr Green was raised by Mr Madureira and ignored by ISS.

• [40] On assessment of all that is before me, I cannot identify any clear incident of a complaint regarding Mr Green's alleged bullying being made. Mr Madureira asserts that his attempts were ignored, but it does not appear there were any attempts made outside of, possibly, a brief comment to Mr Aldoski which is not supported by any further evidence. If ISS were not aware of these issues and, from the evidence before the Commission, I am not satisfied they were, then there was no action that ISS could have taken to investigate or discipline Mr Green. Therefore, I have determined that this did not contribute to a course of conduct by ISS that would leave Mr Madureira with no option but to resign or reasonably result in that conclusion.

• [41] In my assessment of the evidence, there was conduct from ISS that contributed to the resignation of Mr Madureira in that he gradually became unhappy with his employment.

• [42] From the evidence and submissions before the Commission, the handling of the incident on 4 February 2024 was far from adequate in the circumstances. ISS were so concerned about the fitness for work of Mr Madureira on 4 February 2024 that they decided to formally suspend him from duty, in writing, on the afternoon of 4 February 2024, this is evident from the paper trail from the day in question. It is also suggested that there was a discussion between ISS and Mr Madureira on the 19 February 2024 and that, following this meeting, there was no formal resolution to the investigation other than Mr Madureira returning to work with certain medical restrictions.

• [43] It appears that the conclusion of the investigation lacks any formal or written notification of such, which is highly irregular and troubling. The dispute between Mr Madureira and Mr Aldoski in relation to the alleged conversation in early June to close out the investigation is equally troubling, given the seriousness of the incident of 4 February, it would stand to reason that such an important conversation should be supported by some form of documentation or record confirming the content of the discussion and any outcome communicated.

• [44] In my assessment, the conduct that is of most concern is that related to and arising from the conclusion of the investigation. An employee subject to allegations that, if substantiated, could result in a breach of policy and jeopardise their ongoing employment should be rigorously informed at all stages of the investigatory process. The employee subject to the allegations should not be left wondering about the status or findings of any investigation. On the evidence before me, it is clear that Mr Madureira was not properly informed that any allegations against him had not been substantiated. On assessment of the materials submitted by the parties, it appears that Mr Madureira was left with no formal notification that he would not be subject to any disciplinary action nor any feedback about his concerns about the conduct of Ms Johnstone.

• [45] Although I am satisfied that ISS's failure to properly communicate the result of the investigation lead to increased discomfort in the workplace for Mr Madureira, I am apprehensive to conclude that this amounts to conduct leaving no alternative but resignation nor would it reasonably result in that outcome. The primary issue I am faced with in this matter is where to draw the line between conduct that can be held to contributing to general dissatisfaction leading to a resignation of the employee's own free will and conduct that renders the resignation an inevitable outcome and accordingly a dismissal within the meaning of the Act.

• [46] I note the comments of the Full Bench in ABB Engineering Construction Pty Ltd v Doumit:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."[2] (emphasis added).

• [47] The Full Bench in Pawel v Advanced Precast Pty Ltd provides a helpfully illustrative example of how an employer's conduct may result in a resignation but does not necessarily render the resignation a dismissal at the initiative of the employer:

"Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment."[3]

• [48] In the circumstances of the matter currently before the Commission, I am not satisfied that Mr Madureira's resignation was a dismissal as contemplated in section 386(1)(b) of the Act. Despite the deficiencies noted above, I am not satisfied that ISS's conduct (or course of conduct) resulted in Mr Madureira having no other option than to resign or that it would have that probable effect.

• [49] Upon assessment of all the evidence before me, in the circumstances of this matter, I am inclined to conclude that Mr Madureira's resignation was voluntary. I accept that Mr Madureira may have been aggrieved by interpersonal issues within the workplace (between himself, Mr Green, and Ms Johnstone) and the lack of clarity around the close out of the investigation and the lack of full-time employment opportunities. It is my conclusion that Mr Madureira made the understandable decision to seek employment elsewhere as his employment at ISS had turned sour.

• [50] However, I am not satisfied that the Mr Madureira had no option but to resign as a result of ISS's conduct, despite it being understandable that the employment relationship was one that he no longer had a desire to maintain.

• [51] Having concluded that the Ms Madureira was not dismissed by ISS as defined in the Act, Mr Madureira' application for an unfair dismissal remedy is therefore dismissed.

• [52] An Order to that effect has been issued.[4]

[1] [2017] FWCFB 3941.

[3] PR973462.

[4] [PR785007].

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